essay on separation of powers in india

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Separation of Power In India - Evolution and Debates

Updated: Feb 24

In the realm of democratic governance, the concept of the separation of powers holds a pivotal position. It serves as the bedrock for ensuring checks and balances within a political system, safeguarding the interests and rights of citizens.

Blog Content

Definition of the Separation of Powers

Montesquieu's Influence

Lock's classification of powers, wade and phillips' principles(component of speration of power).

Constituent Assembly Debates

Indian Consitution and Dilution of Seperation of Power

Supreme court case on the doctrine, application of separation of powers: the united states, evaluation of the doctrine.

By dividing power among distinct branches of government, constitutional governance aims to prevent the concentration of authority in any one entity, promoting stability, accountability, and the protection of individual liberties.

This article delves into the definition of the separation of powers, its evolution and Supreme court opinion with Consitutent Assembly debates, with Compartive global perspective

Definition of the Separation of Powers:

This doctrine, with its roots in the Enlightenment era, was eloquently articulated by the French social commentator and political thinker Montesquieu in 1748. He cautioned against the dangers of concentrating legislative, executive, and judicial powers in the same hands, be it an individual or a group of magistrates.

Montesquieu's words resonate through the centuries: "There can be no liberty... there is no liberty if the powers of judging are not separated from the legislative and executive... there would be an end to everything if the same man or the same body... were to exercise those three powers."

Montesquieu's enduring influence lies in his profound understanding of the dangers inherent in the concentration of power. His seminal work, "The Spirit of the Laws," laid the foundation for the separation of powers theory.

At its core, Montesquieu's argument rested on the premise that the fusion of legislative, executive, and judicial powers would inevitably lead to the erosion of individual freedoms and the rise of despotic rule.

In response, he proposed the division of these powers into separate branches as a safeguard against tyranny.

Building upon Montesquieu's ideas, John Locke categorized governmental powers into three distinct realms: continuous executive power, discontinuous legislative power, and federative power.

This classification underscored the need for a clear demarcation of roles and responsibilities within government, ensuring that each branch had defined functions and limitations.

"Continuous executive power" referred to the executive and judicial powers, "discontinuous legislative power" encompassed the authority to make and amend laws, while "federative power" pertained to the regulation of foreign affairs.

Legal scholars Wade and Phillips distilled the essence of the separation of powers doctrine into three fundamental principles:

(i) Prohibition of the Same Person Holding Multiple Organs: This principle asserts that no individual should simultaneously serve in more than one organ of government, thus preventing the concentration of power in a single individual.

(ii) Non-Interference Between Organs: It advocates that each organ of government should refrain from encroaching upon the functions and jurisdictions of the other branches. This separation ensures that the distinct roles of legislative, executive, and judicial bodies remain intact.

(iii) Mutual Respect and Cooperation: The principle emphasizes the importance of harmonious coexistence among the branches of government. While independence is vital, it should not lead to antagonism, as cooperation and collaboration are essential for effective governance.

Constituent Assembly Debates on Separation of power in India

During the Constituent Assembly debates in India, a significant discussion emerged regarding the doctrine of the separation of powers. Prof. K.T. Shah , a member of the Constituent Assembly, proposed an amendment to introduce a new Article 40-A that emphasized the complete separation of powers among the principal organs of the state, namely the legislative, the executive, and the judicial branches.

Kazi Syed Karimuddin , another member of the Constituent Assembly, fully supported Prof. K.T. Shah's proposed amendment, endorsing the idea of a strict separation of powers.

However, Shri K. Hanumanthiya, also a member of the Constituent Assembly, dissented from Prof. K.T. Shah's proposal. He argued that the Drafting Committee had already approved a Parliamentary system of government, which he believed was more suitable for India. Shri K. Hanumanthiya expressed concerns about the potential conflicts that could arise if the executive, judiciary, and legislature were completely separated. He emphasized the need for a harmonious governmental structure, asserting that conflicts between these three branches could be detrimental to a country's peace and progress.

Prof. Shibban Lal Saksena echoed Shri K. Hanumanthiya's viewpoint, supporting the idea of a harmonious governmental structure rather than a strict separation of powers.

Dr. B.R. Ambedkar, a key architect of the Indian Constitution, presented a contrasting perspective. He disagreed with Prof. K.T. Shah's argument and advocated for a nuanced approach.

Dr. Ambedkar acknowledged the importance of separating the executive from the judiciary. However, he pointed out that the American model, with its rigid separation between the executive and legislature, had its own shortcomings. He highlighted the complexity and vastness of parliamentary work, suggesting that members of the legislature needed guidance and initiative from the executive branch sitting in the parliament.

Dr. Ambedkar believed that a complete separation, as seen in the United States, might not be suitable for India and could potentially hinder the effective functioning of the legislature.

The President of India, as the executive head, is vested with certain legislative powers. Article 123(1) of the Indian Constitution empowers the President to promulgate ordinances when circumstances necessitate immediate action, provided that both Houses of Parliament are not in session. The President may issue ordinances when satisfied that such action is required.

Additionally, during a Proclamation of Emergency due to the failure of Constitutional machinery under Article 356, the President is granted legislative authority under Article 357. This enables the President to enact laws to address the situation.

Furthermore, Article 372 and 372-A of the Indian Constitution grant the President the authority to adapt and modify existing laws, including repeal or amendment, as necessary to bring them into accordance with the provisions of the Constitution.

Executive and Judicial Functions:

Notably, the President of India also assumes certain judicial functions, as delineated in Article 103(1) of the Constitution.

This article stipulates that if any question arises regarding the disqualification of a member of either House of Parliament under clause (1) of Article 102, such questions shall be referred to the President for a final decision.

Article 50 underscores the importance of maintaining a separation between the judiciary and the executive. However, in practice, there are instances where the executive exercises judicial powers, particularly in the appointment of judges.

Articles 124, 126, and Article 127 provide a framework for the appointment of judges to the Supreme Court and High Courts, involving both the executive and the judiciary in the process.

Legislative Functions of the Judiciary:

The judiciary also exercises legislative functions in certain respects. High Courts and the Supreme Court have the authority to establish rules that have legislative character, regulating various aspects of the legal system.

Furthermore, when the judiciary finds a particular provision of law to be in contravention of the Constitution or against public policy, it has the power to declare that provision null and void.

In such cases, amendments may be required to align the legal system with the Constitution.

The separation of powers in India is a complex and dynamic concept. While there is a clear division of functions between the legislative, executive, and judicial branches on paper, the practical implementation often involves overlaps and interdependencies.

The Constitution of India grants the President specific powers in the legislative and judicial domains, and there are instances where the executive and judiciary perform functions typically associated with other branches. This intricate system underscores the adaptability of the Indian constitutional framework while also raising questions about the extent of separation of powers in practice.

The position of the doctrine of separation of powers in India has been elucidated through various judicial opinions, as demonstrated in the following cases:

In Re Delhi Law Act Case : In this case, Chief Justice Kania made a significant observation regarding the Indian Constitution's stance on separation of powers. He noted that while the Constitution did not expressly establish separation, it was evident that the Constitution had created a legislature with detailed provisions for passing laws. Chief Justice Kania questioned whether it could be inferred that, under the Constitution, the primary responsibility for making laws rested with the legislature. This perspective emphasized the legislature's central role in lawmaking and hinted at a certain implied separation of powers.

Rai Sahib Ram Jawaya v. State of Punjab (1955) : Chief Justice B.K. Mukherjea, in a similar vein, reiterated the absence of an explicit separation of powers in the Indian Constitution. He underscored the Constitution's creation of a legislature and the provisions for lawmaking. Chief Justice Mukherjea posed the question of whether, in the absence of contrary indications in the Constitution, other bodies, such as the executive or the judiciary, were intended to engage in legislative functions. This reaffirmed the idea that the Indian Constitution did not rigidly adhere to the doctrine of separation of powers but rather differentiated the functions of various branches of government.

Ram Krishna Dalmia v. Justice Tendolkar (1958) : Chief Justice S.R. Das, in this case, acknowledged the absence of specific provisions for a strict separation of powers in the Indian Constitution, as seen in the American Constitution. However, he emphasized that an implicit division of powers—legislative, executive, and judicial—existed in the Indian Constitution. Chief Justice Das highlighted that even though the doctrine was not expressly recognized, the Constitution implicitly differentiated the functions of various branches.

Jayanti Lal Amrit Lal v. S.M. Ram (1964) : This case echoed the sentiments expressed in previous judgments. It emphasized that while the Indian Constitution did not explicitly adopt the rigid separation of powers found in the American Constitution, it maintained an implicit division of powers among its various branches.

The United States Constitution serves as a prominent example of the separation of powers in action. While it does not explicitly mention the doctrine, the framers heavily drew from Montesquieu's ideas to establish a system where legislative, executive, and judicial powers are distributed across three distinct branches.

Legislative Powers:

Article I of the U.S. Constitution vests legislative powers in Congress, consisting of the Senate and the House of Representatives. This separation ensures that the process of lawmaking remains a distinct and autonomous function, free from undue executive or judicial influence.

Executive Powers:

Article II assigns executive powers to the President of the United States. This separation of roles is fundamental to the system, establishing a clear boundary between the executive and legislative branches. The President's authority extends to enforcing laws, conducting foreign affairs, and commanding the military, among other duties.

Judicial Powers:

Article III of the U.S. Constitution establishes the judicial branch, consisting of one Supreme Court and other inferior courts. This framework safeguards the independence of the judiciary, allowing it to interpret and apply the law without interference from the legislative or executive branches.

1.The Impracticability of Absolute Separation

Historically, governments have grappled with the impracticality of achieving an absolute separation of powers. The interwoven nature of governance makes it challenging to compartmentalize functions rigidly. As Professor Garner aptly noted, "the doctrine is impracticable as a working principle of Government."

2.The Principle of Checks and Balances

While an absolute separation may be unattainable, the essence of the doctrine lies in the principle of checks and balances. This concept ensures that each organ of government maintains its essential functions without encroaching upon the domain of others. In the words of Professor Laski, "It is necessary to have a separation of functions, which need not imply a separation of personnel."

3.Judicial Interpretation

Judicial opinions have played a crucial role in shaping the doctrine's practical application. The Indian judiciary, for instance, has acknowledged that while the Indian Constitution does not explicitly endorse separation, it differentiates the functions of state organs sufficiently to prevent one from usurping the functions of another.

4.Flexibility and Adaptability

The doctrine's flexibility and adaptability are essential in navigating the complexities of modern governance. While maintaining the spirit of separation, governments often find it necessary to cooperate and adjust to address contemporary challenges effectively.

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Home — Essay Samples — Law, Crime & Punishment — Constitution — Separation of Power in India and Its Consequences

Separation of Power in India and Its Consequences

• Categories: Constitution India

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Published: Nov 7, 2018

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Power corrupts and absolute power corrupts absolutely.

• The Legislature- Legislature is the prime law making authority of India . It comprises of two houses namely Lok Sabha and Rajya Sabha . It makes laws, applies taxes and also keeps a check on the executive. The legislature is responsible for the selection of the head of executive . It represents the true will of people and serves as knight for the proper functioning of democracy. But as the doctrine of rule of power dictates its not all powerful.
• The Executive- executive has the power to command and control military. It can veto laws ,pardon convicted criminals and also participates in appointment of judges out of the three excutive is the only organ who has an express provision that defines its power and functioning.
• The Judiciary – The framers of t our constitution were very careful when it came to Judiciary the provisions made for judiciary were such that the functioning of the judiciary becomes independent and impartial. The judiciary is the authority that interprets constitution and acts as the custodian of the rights of the citizens by using the power of judicial review. But this also makes the judiciary interpret the law and not make them.
• Ram Krishna Dalmia v. Justice Tendolkar AIR 1958 S.C. 538 at p. 546
• Delhi law act case (1951)S.C.R. 747.
• Asif Hameed v. State of Jammu and Kashmir reported in AIR 1989 S.C. 1899

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Separation of Power and it’s Application in India

• Administrative Law Blogs Subject-wise Law Notes
• May 2, 2021

Introduction

Why does any concept comes into existence ? One of the reasons being the flaws in the existing system. Same is the case with the Theory of Separation of Powers. As we already know, Monarchy existed in many nations as the most preferred form of the government for a very long time but due to arbitrariness and abuse of power. Head of the state had all the powers who were not answerable to anyone. The entire control mechanism of the state being in single hands, it was quite difficult to protect the rights of the citizens. Therefore, to eliminate such dominance of power and to prevent suppression of the citizens by those leading the state, theory of separation of powers was brought into existence.

How the Doctrine of Separation of Power Came into Existence?

Aristotle originated the principle of separation of powers. Aristotle first mentioned the idea of the mixed government or hybrid form of the government in his book ‘The Politics’ which he wrote on various constitutional forms that existed in the Ancient Greece.

John Locke developed the principles on which theory of separation of powers is based upon. In his work ‘ Two Treatise of Government’ where he defined three branches of government as ‘legislative’, ‘executive’ and ‘federative’ which he considered as unequal, legislative branch being the supreme one. His model corresponded with the dual form of the government.

Montesquieu , finally, profounded the theory of separation of powers. Charles-Louis de Secondat, Baron de La Brède et de Montesquieu was an 18th century French social and political philosopher. The term ‘trias politica’ or ‘separation of powers’ was coined by Montesquieu who articulated this principle scientifically, accurately and systemically in his famous book, ‘ The Spirit of the Laws’ . Under his model, the political mechanism of the state is divided into Legislative, Executive and Judiciary. He asserted, for the most effective liberty, these three powers must be separate and should act independently. Montesquieu envisioned the principle of three branches of the government keeping the following conditions in mind :

• The same person should not form a part of more than one of the three organs of the government.

• One organ of the government should not interfere with any other organ of the government.

• One organ of the government should not exercise the functions assigned to any other organ.

Meaning of Separation of Powers

As is evident from the name itself, theory of three branches of the government divides the entire governance mechanism into three different organs to reduce the arbitrariness by the people running the state. The division is also necessary as it is impossible for any one organ to perform all the roles and responsibilities systematically and appropriately. Under this theory, the state is divided into the three branches – Legislative, Executive and Judiciary as given by Montesquieu. Each organ has it’s own independent working, separate set of rules and guidelines to follow and has no power to interfere with the working of the another organ.

Connection of Separation of Powers to the U.S. Constitution

The doctrine of separation of power in India has been adopted from the Constitution of United States. This doctrine finds its home in the U.S. where the doctrine is being adopted in the strict sense. The makers of the American Constitution believed the adoption of this principle is necessary so as to prevent the rise of tyrannical government. Three departments have been established under the Constitution of USA to ensure adequate division of powers which are as follows :

• Article I, section 1 vests all legislative power in the Congress,

• Article II, section 1 vests all executive power in the President of the United States, and

• Article III, section 1 vests all judicial power in the Supreme Court.

Marbury v. Madison is arguably the most important case in United States Supreme Court history specially, when it comes to the development of the doctrine of separation of powers in U.S. This case established the system of judicial review in the U.S. under Article III of the Constitution. Until this case, it was unclear which branch of government had the final say in what is, and is not, a constitutional law.

William Marbury, who had been appointed by President John Adams as Justice of the Peace in the District of Columbia but whose commission was not subsequently delivered filed a petition in the Supreme Court to force Secretary of State James Madison to deliver the documents, but the court, with John Marshall as Chief Justice, denied Marbury’s petition, holding that the part of the statute upon which he based his claim, the Judiciary Act of 1789, was unconstitutional. The landmark decision has helped in defining the “checks and balances” of the US government back then.

Principle of Check and Balances

System of Check and Balances is the natural extension of theory of separation of powers. The intention behind a system of separated powers is to prevent the concentration of power by providing for checks and balances. The second and the third conditions envisioned by Montesquieu, as mentioned earlier, depict the same concept of checks and balances. The concept says that each organ of the government has the power to check the functioning of the another organ whenever any organ unduly performs the roles allotted to it or tries to intervene in the functioning of any other organ and can prevent it from doing so. Said in simpler words, basically, each branch has power to limit or check the other two branches, which creates a balance between the three separate branches of the state.

  Application of Separation of Powers in India

 Looking at the provisions of the Constitution of India, it is evident that the Doctrine of separation and power has been accepted in India but unlike U.S., India has accepted it in rigid sense instead of strict sense. Meaning to say, in India, there is a proper distinction between three organs and their functions. In India, not only there is functional overlapping but there is personnel overlapping also.

There is a Excellent system of checks and balances as provided in the constitution over each pillar of our democracy to curb the illegal and arbitrary exercise of powers.

The basic principle under the Indian Constitution is that the legal sovereign power has been distributed between three organs of the governance as follows:

• Legislative – The role of this organ of the government is to frame laws and regulations for citizens and other organs to follow which expresses the ‘the will of the state’. Legislature is given is the first place among the three organs because until and unless the law is framed the functioning, implementing and applying of the law cannot be exercised. Therefore, the role of legislature of the basis of the working of the other two organs, thereby, depicting the interdependence of the organs.

In India, legislature organ comprises of two bodies : (a) Parliament which includes Raj Sabha and Lok Sabha, which lays down the laws at the central level for the nation and (b) State Legislative bodies which frames the laws at the state level, each for it’s own state.

• Executive – The main function of the executive is to implement, carry out and enforce the will of the State. The executive is the administrative head and the impetus of the government. It is called as the mainspring of the government because if the executive crack-up, it might lead to the collapse of the government.

In Indian executive mechanism, (a) President is the head of the executive at the central level whereas, (b) Governor is the head of the executive at the state level. Moreover, Indian executive also includes head of the minister, advisors, departmental head and his ministers.

• Judiciary – Laws framed by legislative are to be applied by the Judiciary taking into consideration principles like Natural Justice, Liberty and Fairness. Moreover, Judiciary also ensures that the laid rules and regulations are being enforced in a proper manner.

Indian judiciary system comprises of (a) Supreme Court as the apex court of the country, (b) High Courts as the highest most courts their respective states and (c) Subordinate courts at various levels in the district as per the needs of the governance.

Articles associated with Separation of Powers

Articles which have expressly adopted the doctrine of separation of power in the Constitution of India have been talked of below :

• Article 52 to 78 : Chapter I of the Part V of the Indian Constitution talks about the executive organ of the government at the union level. These articles lay down all the necessary rules and regulations to be followed by the President, Vice-President, Council of Ministers, the Attorney-General for India and whereabouts of the conduct of the government business.

• Article 79 to 123 : Chapter II of the Part V of the Constitution states the laws that are to be followed by the Parliament at the legislative level like who can be the officers of the Parliament, conduct of Parliamentary business, disqualifications of the members, powers, privileges and immunities to the members, legislative procedure to be followed and so on that are to abided by at the central level.

• Article 124 to 147 : Chapter IV of the Part V of the Constitution discusses the guidelines that are to be followed by the Judiciary at the union level like establishment and constitution of the Court, appointment of judges, their qualifications and disqualifications, other civil and judicial authorities and alike.

• Article 153 to 167 : Chapter II of the Part VI of the Constitution tells about the executive organ of the government at the state level. Laws have been laid down that are to be followed by the Governor, Council of Ministers, Advocate-General for the State and about the conduct of the government business.

• Article 168 to 213 : Chapter III of the Part VI of the Constitution talks about the Legislative organ of the government at the state level. These articles include regulations regarding constitution of the State Legislative, appointment, qualifications, disqualifications, powers, privileges, immunities to the officers of the State Legislature, legislative procedures to be followed.

• Article 214 to 237 : Chapter V and VI of the Part VI of the Constitution lays down laws regarding the Judiciary at the state level. These articles talk about the constitution of the High Courts and the Subordinate Courts in the state, appointment of the judges, powers, authorities and so on.

Judicial Pronouncement Involving Separation of Powers

Application of the Doctrine of Separation of Power has been discussed in ‘n’ number of cases. Some of the landmark Judicial Pronouncement given in the Indian cases have been discussed below :

• The first judgement that involved the Doctrine of separation of power was in the case of Ram Jawaya v State of Punjab . The court observed that the Doctrine of separation of power is accepted in India neither fully nor in strict sense. Observing this, Justice Mukherjee said :

“ The Indian constitution has not indeed recognized the doctrine of separation of powering its absolute rigidity but the functions of the different parts or branches of the government have been sufficiently differentiated and consequently it can very well be said that our constitution does not contemplate assumption, by one organ or part of the state, of functions that essentially belong to another”.

• In the case of I.C. Golakhnath v.  State of Punjab, the Constitution brings in actuality the distinct constitutional entities i.e. namely, the Union territories, Union and State. It also has three major instruments namely, judiciary, executive and legislature. The Court observed:

“ The Constitution brings into existence different constitutional entities, namely, the Union, the States and the Union Territories. It creates three major instruments of power, namely, the Legislature, the Executive and the Judiciary. It demarcates their jurisdiction minutely and expects them to exercise their respective powers without overstepping their limits. They should function within the spheres allotted to them.”

• In the landmark case of Keshvananda Bharti v Union of India , the. Court has the views that the amending power is subjected to the basic features of the constitution. Therefore, any kind of alteration to the basic structure was prohibited and would be considered unconstitutional. Justice Beg observed that the separation of powers is the part of the basic structure of the Constitution and thereby confirming the relation to the Doctrine.

• The issue of whether the legislature can undertake judicial functions was addressed in the case of  Indira Nehru Gandhi v. Raj Narain ,  where it was held that two important conditions need to be fulfilled by legislature when they are performing judicial functions. Firstly, the power should be expressly provided to the parliament and second, the due process of law during discharging the function must be upheld.

The Modern State has transformed from Police State to Welfare State. Earlier the State functions were confined to defense, administration of justice or maintenance of law and order. With the gradual change in time, state undertook the responsibility to provide social security and social welfare for the common man, regulate industry, trade etc with a view to protecting as well as promoting public interest. Thus, with such a workload it is not possible for the State to stick to the doctrine of Separation of powers. Theory of Separation of power cannot be practically possible in reality.

It is rightly said by Madison that, “ The accumulation of all powers, legislative, executive and judicial, in the same hands of one, a few or many, and whether hereditary, self appointed or elective, may justly be pronounced the very definition of tyranny”.

From this it can be concluded that the doctrine of separation of powers in the strict sense is undesirable and impracticable and therefore till now it has not been fully accepted in any of the country. In theory under the Constitution of United States of America the doctrine of separation of power has been strictly adopted but there also gradually the Supreme Court is relaxing the policy. In India also on casual viewing of the Constitution it can be said that India has adopted the doctrine of separation of power but in reality it is not so. The three organs in some or the other way perform the task of other. For e.g. the legislature delegate some powers to executive, thus executive the function of the legislature, in the same way the Parliament other than making laws also have judicial power which it can exercise when its contempt take places.

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Author Details: Shree Gupta (University of Lucknow)

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Separation of Powers

• What is the doctrine of separation of powers
• What is the origin and evolution of the doctrine of separation of powers
• What are the provisions pertaining to the separation of powers between the three organs of state in India
• What are the various judicial pronouncements on the doctrine of separation of powers in India

Prelims:   Indian Polity and Governance – Constitution, Political System, Panchayati Raj, Public Policy, Rights Issues, etc.

Mains:   Separation of Powers between various organs Dispute Redressal Mechanisms and Institutions.

What is the doctrine of separation of powers? 

Separation of powers is the division of the legislative , executive , and judicial functions of government among separate and independent bodies. 

• The Legislature makes laws, the Executive puts those laws into effect, and the Judiciary administers justice by interpreting the law and ensuring that the law is upheld.
• The purpose of separation is to limit the possibility of arbitrary excesses by the government.
• Separation of powers also prevents misuse of power or accumulation of power in a few hands, which thereby safeguards the society from arbitrary and irrational power of the state.

What is the origin and evolution of the doctrine of separation of powers? 

The first modern formulation of the doctrine of separation of power was given by the French political philosopher Montesquieu in The Spirit of Laws, 1748 . Inspired by the English constitution , Montesquieu argued that liberty is most effectively safeguarded by the separation of powers .

• Article I granted powers to the legislature.
• Article II gave executive power to the President .
• Article III created an independent judiciary.
• In this spirit, the Constituent Assembly , while drafting the Indian Constitution , debated on inserting the provision ‘There shall be complete separation of powers as between the principal organs of the State-the Legislative, the Executive, and the Judiciary ’ as one of the Directive Principles of the State Policies. 
• Finally, Article 50 was inserted, which gave for the State to take steps to separate the Judiciary from the Executive in the public services of the State.

What are the provisions pertaining to the separation of powers between the three organs of state in India? 

The Constitution of India has various implicit provisions for the separation of powers among the legislature, the executive, and the judiciary. However, in most cases, the separation is not water-tight, and there are instances of overlap in functions to ensure checks and balances . 

Legislature and Executive

            Table on separation of powers between Legislature and Executive

Judiciary and Executive

Table on separation of powers between Judiciary and Executive

Judiciary and Legislature

Table on separation of powers between Judiciary and Legislature

What are the various judicial pronouncements on the doctrine of separation of powers in India?

• Ram Jawaya Kapoor vs State of Punjab (1955) : It was held that the Indian Constitution has not indeed recognized the doctrine of separation of powers in its absolute rigidity, but the functions of the different parts or branches of the government have been sufficiently differentiated. 
• Golak Nath vs State of Punjab (1967): In this case, the judges observed that the three organs of the government are expected to exercise their functions within their limits and keeping in mind certain encroachments assigned by the Constitution.
• Indira Gandhi vs Raj Narain (1975): The Supreme court invalidated a clause of Article 329A inserted to immunize the election dispute to the Office of the Prime Minister from any kind of judicial review. In this case, It is held that the separation of powers is a part of the Basic structure . 
• Kartar Singh vs State of Punjab (1994): It was stated that the function of the legislature is to make the law, the executive is to implement the law, and the judiciary to interpret the law within limits set down by the Constitution.

What are the issues associated with judicial legislation in India?

The term "judicial legislation" refers to the law pronounced, proclaimed, and declared by the judiciary, specifically the Supreme Court. This type of law is sometimes called "judicial law" or "Judge-made law."

• The Supreme Court in Rattan Chand Hira Chand v. Askar Nawaz Jung (1991) stated, “The legislature often fails to keep pace with the changing needs and values nor is it realistic to expect that it will have provided for all contingencies and eventualities. It is, therefore, not only necessary but obligatory on the courts to step in to fill the lacuna”.
• The collegium system out of The Second Judges case (1993) and the Third Judges case (1998).
• Legalizing passive euthanasia in Aruna Shanbaug v. Union of India, (2011). 
• ‘None Of The Above’ (NOTA) in elections as a Right in People’s Union for Civil Liberties (PUCL) case 2013.
• The Indian Constitution does not strictly follow the doctrine of separation of powers, but the functions of different parts of the government have been differentiated. 
• The judiciary is not supposed to indulge in lawmaking, but there are instances where judicial legislation is justified. 
• Judicial creativity can be justified in certain situations, such as when there is a peculiar issue at hand or when laws enacted need to fulfill the needs of the people. 
• Judges make the law when there is a legal vacuum or no express principles of law. The impact of judge-made law can create credibility and reliability, but it can also create a sense of uncertainty and unwanted strife between the organs of the State.  

Previous Year Questions

Q) Judicial Legislation is antithetical to the doctrine of separation of powers as envisaged in the Indian Constitution. In this context justify the filing of large number of public interest petitions praying for issuing guidelines to executive authorities. (2020)

Q) Do you think that the constitution of India does not accept the principle of strict separation of powers rather it is based on the principle of ‘checks and balance’? Explain. (2019)

Q) From the resolution of contentious issues regarding distribution of legislative powers by the courts, ‘Principle of Federal Supremacy’ and ‘Harmonious Construction’ have emerged. Explain. (2019)

Q) Resorting to ordinances has always raised concern on violation of the spirit of separation of powers doctrine. While noting the rationales justifying the power to promulgate ordinances, analyze whether the decisions of the Supreme Court on the issue have further facilitated resorting to this power. Should the power to promulgate ordinances be repealed? (2015)

Q) In India, separation of judiciary from the executive is enjoined by (2020)

(a)The Preamble of the Constitution

( b) A Directive Principle of State Policy

(c) The Seventh schedule

(d) The conventional practice

   Frequently Asked Questions (FAQs)

Q) Who propounded the doctrine of ‘separation of power’?

Q) Is the term 'separation of powers’ mentioned in the Indian Constitution?

No. The term ‘Separation of Powers’ is not explicitly mentioned in the Indian Constitution. However, it is a part of the ‘basic structure’ as declared by the Supreme Court.

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